The Question of Who Gets to Count in the Census Goes to the Supreme Court

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From the ACLU. This is at liberty. I'm Emerson Sykes a staff attorney here at the ACLU and your host. On April twenty third. The supreme court of the United States will hear a case called department of commerce versus New York the cases about whether or not a question about citizenship can be added to the twenty twenty cents questionnaire. The department of commerce which is responsible for carrying out. The census says it needs to collect citizen information, and that it has every right to decide what demographic questions go into the census as long as they are reasonable leaving the courts with limited ability to review, the government's action arguing the other side in this case is this week's guest Dale who is the director of the ACLU voting rights project and the first three time guests on that. Liberty Dale is litigated many important voting rights cases, all over the country. But this will be his first supreme court argument. We wanted to take the opportunity to speak with him about the case and about the process of preparing for oral argument in the supreme court, Dale hope. Thanks very much for joining us today, despite your very busy schedule. Welcome back to the podcast. Thanks for having me back. He's start by telling us briefly what? In this case is about what questions does the Courtney to decide and why is it important? So let me start with cases about it's about a pillar of our democracy. Article one section two clause three of the United States constitution requires a census of the entire population. Every ten years were supposed to count everyone in the country adults and children citizens and noncitizens whether you're a voter or non voter, and it is really foundational for our constitutional structure that count is the basis for everything that we do statistically as a country in government, and in business, it's how we apportion representation in congress in state legislatures and how we allocate nine hundred billion dollars in federal sons annually, and we do it only once every ten years. So if you screw it up, there's no way to fix it for a decade, what the government wants to do is at a question on citizenship to the census. And with the census bureau has recommended for decades is. That's a terrible idea because non-citizens and people who have non-citizens in their family, or I think understandably reluctant to share that information with the federal government notwithstanding. The fact that census responses are confidential and with the census bureau has said for decades is that if you ask this question it's gonna wreck the accuracy of the census the census bureau predicted that if you added this question in twenty twenty six and a half million people won't respond to the census. That's a lot of people. If you put them all together, they'd be our eighteenth largest state. It's more people than in the state of Missouri. And what's worse is that non-citizens aren't distributed evenly throughout the country clustered in particular places, and those states and communities will be at severe risk of an undercount and losing representation in congress and important federal resources, Texas, California, Florida, Illinois, Arizona, New York, all six of those states would lose a seat in the house of representatives. If this question were added, so it's difficult. Understate the importance of this case, and the severe consequences that would flow from adding this question to the census now what the court has to decide is whether or not there was a sufficient evidence basis in front of the administration for adding it that is whether or not there was evidence to support the administration's rationale the administration says they need this information to enforce the Voting Rights Act, which we all know is very high priority of this administration hasn't felt a single case under the Voting Rights Act in over two years. And yet they say they need to up end decades of practice, contrary to the consistent recommendations of a census bureau to enforce the statute that they have shown zero interest in enforcing it. Just doesn't make any sense if I can just jump in there. There's sort of two key questions here. It seems like on the one side. It's an argument around administrative procedure. Did they follow the proper procedure for adding the question to the census, and you have quite strong arguments that say, no. They didn't follow the proper procedure. And we can get into all the reasons that you think that's the case. But then there's also the substantive question about whether the census should actually have a citizenship question. So can you talk a little bit about the substance versus the process? Can you win on one in lose on the other? What does the court needs to do here? And what does it mean for you to win or lose? It's actually I think kind of difficult to disentangle the procedural and substantive questions here because the administration's procedures here, we're quite problematic. They overruled the unanimous opinion of the census bureau, they conceal the real reasons for wanting to add this question, they say, it's the Voting Rights Act. But clearly that's not something that interests this administration at all they clearly had some other agenda in mind, and we can talk about that they didn't test this question, which the census bureau typically requires before new question is added to the census because the is concerned about the accuracy of that count. Those are all problem. Terms, and those would be sufficient Basi's, those procedural violations for striking down the decision. It's difficult to disentangle the procedural questions from the substantive ones. The question we're worried is going to wreck the accuracy of the census the census bureau recommended not to do it. And the administration didn't allow the census spirit to conduct all the testing would normally conduct to build a strong record as possible for whether or not this question is one that makes sense. So yes, this case is about proper procedure. But it's difficult to disentangle those procedural and substantive questions, and he talked about the the Voting Rights Act excuse is not credible. And that you have evidence that there are all sorts of other reasons that they wanna ask the citizen ship question. Can you tell us what's the most damning evidence that you've found against the government? What really is behind? The addition of this citizenship question. Well, the secretary of commerce Wilbur Ross who oversees. The census he wrote in his decisional statement where he ordered the census bureau to add this question that his decision making process was initiated when he received a letter from the department of Justice in December of two thousand seventeen asking for the question to facilitate enforcement of the Voting Rights Act, that memorandum basically echoed testimony that secretary Ross had given in congress that he was responding soley to the department of Justice that he had not had any conversations with political actors in the White House about this. And we know once we got the Commerce Department's documents that all of that was false that in fact by may of two thousand seventeen seven months before the department of Justice ever sent a letter about the Voting Rights Act Wilbur Ross was already furious with his aides writing angry emails to them asking them, why they had not already added the citizenship question to the census the notion that this would be helpful for the Voting Rights Act appears on. Only a few pages out of thirteen thousand pages worth of documents that we got from the secretary of commerce, but what appears far more frequently is constant grousing from the secretary from his aides from political actors in the White House crisco Bach. Who was then the secretary of state of Kansas who Steve Bannon put in touch with commerce secretary Ross constant grousing, but non-citizens are included in the population count of the census, and that states and areas that have non-citizen populations are receiving credit for those populations in the apportionment of political representation. Not was the fact that the constitution was quite clear that representation in congress is apportioned to the states, according to their respective numbers of inhabitants with no regard to citizenship age voting status or anything like that. So we know that the secretary made is decision before the DOJ ever mentioned the Voting Rights Act. And we know that the issue that keeps cropping up frequently. In in the documents is not the Voting Rights Act, but instead an anti immigrant agenda. Well, you talk about the sort of alterior motives of the government and one other way that manifests itself is the very unusual path of this case has taken to the supreme court. Just people may know that for in general federal cases are tried and district courts which exist in every state, and then if there's an appeal they go up to the circuit court of appeals which exist around the country by region. And then if there's a further appeal that goes up to the supreme court to decide the question, but this case had a very different path to the supreme court. Can you just tell us a little bit about what was so unusual about the way that the case got there? Yeah. So we got to the supreme court on several occasions in this case before the trial was complete and the reason for that was the government's desperation to avoid a trial in this case. The government filed fourteen separate motions to stop this trial from. Happening. I've never had a case with more than one such motion means you're on the night track. But I think it speaks to not only a lack of confidence in what the evidence is. But a desperation to conceal what the Trump administration's religion was here, and they would follow these motions, they'd lose. They try to stop discovery. They try to stop us from getting documents stop a deposition from happening or stop the trial from happening altogether. And when they lose the take it up to the supreme court normally supreme court doesn't hear discovery disputes. The usually like to let those kinds of issues play out in lower courts. And then just take the case all up at once. But one point they actually were able to get the supreme court to bite we had an order from the trial court in this case to take a deposition of commerce secretary Ross based on some of the misrepresentations that I was describing earlier, you know, it's difficult to get a deposition of cabinet secretary. And for good reason, they're very busy people have lots of response. Abilities, and we normally presume that the heads of government agencies act in good faith here. However, there was very strong evidence that that is not what happened that there were significant regularities that there was bad faith. And that the only person who knew what really was motivating this decision was secretary Ross himself. We got an order from the court permitting his deposition and then about forty eight hours before the position was to occur. The supreme court stayed that order and deposition just briefly in-person interview with someone you think might have additional information on the case, right? And it's on the record. And it's under penalty of perjury. So the case I went up on this question about whether or not you could have access to a senior cabinet official. That's right. But something very strange happened as they were considering this preliminary question, they allowed the lower court trial to continue. Right. So in some sense, you were trying this case in multiple courts at the same time. And eventually the district court as I said issued an. Extremely lengthy opinion very strongly finding in your favor. So then you were already at the supreme court about this question about Wilbur Ross, and whether you could interview him and in the meantime, you won in the lower court. So now is it accurate to say that now the court has to decide not just the question of Wilbur Ross, but also whether or not you properly one in the district court, whether or not we properly one of the district court, but also all of those discovery questions what kind of evidence was proper for the district court to consider the deposition of Wilbur Ross. I think at this point is moot because the trial has already happened. And as you mentioned, it's very unusual to be in multiple courts simultaneously on the same case. I think the reason for that was largely because of the timeframe that we're under the census questionnaire is supposed to be printed this summer normally if you had legal questions at an appellate court was interested in you might let the appellate court. Resolve those questions before proceeding with the trial. Normally, we might have been content. To let that happen. Because obviously if we had one, then maybe we could have taken secretary Ross's deposition use that evidence at trial, but we were under the gun. The census forms are supposed to be printed this summer. And I think we all agree that everyone is best served by getting resolution on this case sooner rather than later, I noticed in the brief advising the court on whether they should take the case, you basically wrote you shouldn't take this case you should leave the lower decision. But if you're going to take it take it now into quickly. That's right. Well, one of the reasons that we think that the government was so eager to stop this case, and this Pacific to get to the supreme court as that they probably think that they have a more sympathetic audience in this particular configuration of the supreme court. How does that figure into your calculations as you approach this argument? Clearly, they think that they have a better shot in the supreme court than they had in the district court. How are you approaching this? Are you tailoring your argument any particular Justice of justices can be unpredictable sometimes? So there's some risk to China. Oh, deep inside their heads. But I wonder how you're thinking about the individuals that are on the bench Kia. I mean to your first point the Trump administration has definitely acted as though it sees the supreme court as a more hospitable venue for its positions than lower courts are cases in the first case in which the administration's tried to leapfrog the normal appellate process, which is you have a trial or a trial court decision. You go to the federal courts of appeals circuit courts. These are the intermediate appellate courts that resolve most appeals in the federal system. Very few cases, go to the supreme court in case. After case the administration has sought to leapfrog that intermediate step and go straight to the supreme court because I think they've made a strategic calculation that they are more likely to prevail there than they are in the intermediate appellate courts you've seen this in the DACA, litigation in the transgender military ban and some other immigration related matters. We've generally opposed that we generally don't agree that there's a basis for. Deviating from normal federal appellate procedures here because of the urgency of getting resolution because of the printing date of of census forms. We didn't dispute that it was better to to go quickly as far as our strategy for the supreme court. There's a whole cottage industry of people who play psychologist trying to figure out the idiosyncrasies of the individual justices to try to tailor your arguments to them. And of course, we do a little bit of that in the way that we try to frame the case. But at the end of the day is case rises and falls on whether or not what secretary Ross said, which is that this is going to be more accurate census and give you more accurate citizenship information whether that is supported by the actual evidence from the census bureau, and it's analogous before. He made his decision and the answer to both those questions is no, it's unequivocal. You look at what the census bureau wrote Vate analyze this. They determined. It will not make more accurate census. And it'll. Give you worse citizenship data than you could get from the social security administration and the department of homeland security. So why are we even here why are even doing this? It seems like the basic reason that many immigrant households especially might not want to answer this question that would result in the undercount that you're so worried about is some vague concern about information security and data security in terms of the census information. I know that you said that it's required to be confidential. But if the government is collecting all of this house by house information, including citizenship wonders where that information is stored in. How securely that is done is that a major concern here. I think they're two separate concerns. There's privacy and confidentiality privacy means I don't wanna share my information with you. Because I wanted to be kept personal confidentiality is it's not so much about mine formation being shared with you. But what happens to it? Once it gets shared, and I think both concerns are at play here. I think some people just don't wanna give that information out. They consider it personal. And if. Asked they'd rather not participate in a survey at all. But then I do think there are concerns about confidentiality, and whether or not the responses that people give to the census will ultimately be used for other purposes. I want to be very clear that federal law protects the confidentiality of census responses, and if people are thinking about boycotting the census because of this question, that's not a productive response in our view that will cause the very undercount of immigrant communities and communities of color that this administration is trying to affects you, wait. And those communities will lose the very representation and resources that this administration wants to deprive them of all that being said people are worried about this. Right census responses were used during the Japanese internment during the nineteen forties to identify locate. And ultimately, incarcerate Japanese Americans. So on the one hand, I want to reassure people on the other hand, I'm very understanding of people's fears here. What do you suggest if the citizenship question is included on the census, what do you advise people to do you said they should still answer? Most of the question should they just refuse to answer that particular question? Do you have any advice on that we're going? I mean responses to the census generally in any questions on the questionnaire are required by law never advise people to break the law. We're not better off if the answer is on the census questionnaire or inaccurate in any way, people should answer the survey, they should answer the questions, truthfully and accurately and people need to get the word out because I think there's going to be a lot of concern in immigrant communities and communities of color about this question that you are letting them win by not answering the census interesting well wanna maybe which gears a little bit and talk about the process of preparing for oral argument get behind the scenes a little bit or argument is quite short a handful of minutes, but from others I've talked to who. Who've organ the supreme court. The preparation is extremely extensive. Can you just take us through a little bit of the process of preparing what have you done so far? What do you have a head of you? Normally, you would file your brief in you have a few months to prepare for the argument this cases on an expedited timeframe, and our brief was due twenty two days before the argument. I thought I'm counting. So the preparation process has been a little truncated. I'm obviously carefully reading all of the briefs that have been filed in the case, not just hours and the governments. But the dozens of ecus briefs that have been filed the cases that have been cited by all the parties and going through an extensive what we call moot court process mock or arguments that can go about two hours at a time more extensive series of moods than I've ever been through how many moons are you doing five well each about two hours, ten hours of being in the hot seat grueling and in this process of reviewing all of. These documents in doing all of these moods. Have you learned anything new about the case or even about yourself as a lawyer? Yeah. I mean, it's interesting little things jump out at you staring at the same documents for the tenth time. Little phrases little words little details. Kind of jump out at you that I hope will make the answers that I give a little more rich. So I have learned even more about the case. I you pretty much all there was to know about it when we did our brief. But even since then in the last week, I learned a few things that I wish I learned before the briefly with such as life. Yeah. Learning a few things about myself one thing that I do need to turn it off sometimes and let my brain rest. It's a marathon not a sprint and a more of a sprinter by nature. So it's learning to pace myself. And that I need to pace myself is something that morning little bit. The other day of plan doing yoga in the morning, special breakfast, your suit and tie picked out. You know, my last oral argument was in the US court of appeals for the tenth circuit last month that long ago, I was doing this for a completely different case the day before the argument, I went on nine mile run and just reread the briefs, and I learned about a technique that apparently chief Justice Roberts used when he was a lawyer which was that he would write out what he thought were the five or six most important points in his case individually on note cards, and then shuffle them, right? So that he could learn to present. His case in any order and make transitions between any of his major points. Just on the fly come up with sags from one point to another even if it didn't necessarily follow the most logical order because you don't know what order the questions are going to come at you. So I did that for about ninety minutes the day before the argument, and then again for about thirty minutes of the morning of last time and actually found that very, very helpful. That sounds like a good technique for practicing being a podcast toast. Take that one. Maybe well since you're like, you're funny jokes or lines on a date or something. Six funny things. I I've been married for ten years. So it's been a long time since I really no cuts maybe on your phone or something like that. Yeah. Something like that. Maybe an app well since you're a colleague in our offices are almost next to each other. And you're deep in supreme court prep mode. I thought I'd end with question that's a little tougher than normal. So what's the question that you least want the justices to ask you? That's a hard one. Because there are a number of questions that I found challenging in some of our moods. I think you know, there's no rational reason for this question. Right. We know it's going to make the census count worse when they say we need citizenship information to enforce the Voting Rights Act. But we know there's better way to get citizenship. Information can be more accurate less expensive and questions just gonna make for more. Inaccurate data. And yet they're still desperate to do it. Right. So what is that? Right. I think there's this kind of irrational desire to just put this question on the census to sort of express this notion that there are citizens who are real Americans here and there's everyone else, right? And we want to put that on this once in a decade document that is enshrined as a pillar of our constitutional structure in the text of the constitution itself. And at the end of the day. I think that's what this case is about for the other side. And it would not surprise me. If I get questions that aren't about the law aren't about the evidence, but rather are expressions of that sort of sub rational desire to have this question on the census, and I'll do my best to keep. The discussion about the law and the facts, but I do think it may be difficult to escape the politics of this and to someone with that kind of political world view. I don't know what to say of embeds not the kind of country that I wanna live in. Well, it's always nice when you have the law and the facts on your side. So hopefully, you can go sheet the politics and just wrap up. What are you most looking forward to after April twenty third? Dinner with my wife. Wonderful can't think of a better way to finish. Thank you very much. They'll reprise coming back to speak with us. Thanks for having me. Thanks very much for listening. We hope you enjoyed this conversation. If you like this episode, be sure to subscribe to at liberty wherever you get your podcasts and rate and review the show. We appreciate your feedback till next week piece.

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